Katie Serfas (’11) argued in the United States Court of Appeals for the Fourth Circuit, in the case of Cousins v. Green, on Jan. 25. Alayna Ness (’11), who helped Serfas prepare, also attended the argument, which was held in the Fourth Circuit courthouse in Richmond, Va.

The issue in Cousins is whether Mr. Cousins’ state court trial counsel provided ineffective assistance by failing to find an exculpatory witness. Cousins was convicted of second degree murder and using a firearm to commit a felony, after a shooting that occurred on a street in Capitol Heights, Md., and sentenced to 50 years in prison.

There were no eyewitnesses to the murder, and only two witnesses connected Cousins to the crime – the other suspect, and the other suspect’s aunt, who claim that Cousins confessed to the crime. At trial, Cousins’ counsel argued that those two witnesses had conspired to pin the crime on Cousins and that the gun was fired from an upstairs window on the street where the victim was found.

The other suspect, his aunt, and his grandmother all lived on that same street, yet trial counsel did not interview neighbors to try to find other witnesses. After trial, an eye witness linking the crime to the other suspect came forward. During the murder, he was outside a house two doors down, about to visit a friend.

Cousins unsuccessfully appealed through the Maryland state court system and then petitioned the United States District Court of Maryland for habeas relief pro se, on the ground that his right to effective counsel under the Sixth Amendment to the United States Constitution had been violated.

There is a two-part test for ineffective assistance of counsel, including attorney conduct below an objectively reasonable standard, and prejudice to the client. The District Court ruled against Cousins, he appealed to the Fourth Circuit, and the Fourth Circuit appointed the Appellate Advocacy Clinic to represent him. Two members of the Class of 2010 wrote a brief on his behalf last year.

“Katie did a fantastic job arguing for Mr. Cousins,” said Professor John Korzen, director of the Appellate Advocacy Clinic. “She was clear, persuasive, and in command of the facts and the law. The ‘prejudice’ prong is a tough argument, but she did as well as one could hope. Judge Agee, in fact, told her afterwards that ‘you did a great job with what you had to work with!’”

A decision is expected sometime in the next three to four months. If the Court rules against Cousins, the Clinic will petition the United States Supreme Court for certiorari on another issue that the Fourth Circuit did not certify for appeal, which involved the prosecution withholding evidence.

Of the experience, Serfas said, “I never dreamed I would have the opportunity to argue before a federal appellate court before I graduated from law school. I am very grateful to Wake Forest for providing me this opportunity – it is an experience I will not soon forget!”

In addition to Alayna, Clinic members Megan Curran (’11) and John Byron (’11) also helped Serfas to prepare by reviewing the briefs and judging practice arguments.

The Appellate Advocacy Clinic represents clients in various appellate courts. It is open to third-year law students who have demonstrated proficiency and interest in LAWR I & II and Appellate Advocacy. For more information about the Clinic, contact Professor Korzen.